Before the Court is the Plaintiffs’ motion for summary judgment. The motion is ALLOWED for the reasons that follow.

Pertinent Facts

Facts

The plaintiffs Janice Bessette and Barbara Messier (“Plaintiffs”) are sisters. Their father, Raymond Mitchell (“Raymond”), was married to their step-mother, Mary Mitchell (“Mary”). By a previous marriage Mary had several children, one of whom was the defendant Mervin Steele (“Mervin” or the (“Defendant”). Mervin is married to the co-defendant Marilyn Steele.

Raymond and Mary jointly owned and lived in a duplex residential dwelling in New Bedford at 6-8 Granite Avenue (the “Premises”). In 1988 they entered into a written notarized agreement, drafted by their joint counsel, intended to address the disposition of the Premises upon their respective deaths (the “Agreement”).

The Agreement provided that upon the death of one, the other would have a life estate in the Premises. It further provided that if the survivor decided to sell the Premises, ”then the seller agrees to distribute one half of the net proceedsto the children of the predeceased spouse in equal shares, share and share alike”. The Agreement also recited that in their respective wills upon the death of the survivor, “one half of his or her estate shall go to the children of Raymond and the other half shall go to the children of Mary.” As to the Premises, the Agreement additionally provided that Raymond and Mary “will not change [their] Wills as far as the disposition of the [Premises] is concerned.” And the Agreement concluded with the enforcement clause that “[t]he parties further agree that this Agreement shall be binding on their, heirs, executors, administrators and assigns.”

The Defendant is an “heir” of Mary.

Raymond and Mary informed the Plaintiffs of the Agreement. The Defendant denies that he was aware of the Agreement until he and his direct siblings discovered a copy of the Agreement while they were going through Mary’s effects shortly after her death in January 2004.

Raymond died in November 1992. Mary continued to live at the Premises until she died in 2004.

No amendments were made to the Agreement.

Via affidavit, Plaintiffs described conversations they had after Raymond’s death with Mary in which she affirmed the Agreement. However, at the time of these conversations Mary also gave expression to the Plaintiffs that she wanted to be free of the Agreement in order to convey the Premises to the Defendant. The Plaintiffs reminded her that the Agreement could not be changed under the circumstance that Raymond had died and its terms were fixed as to Mary and her heirs. As noted, the Defendant denies that Mary informed him of the Agreement before her death.

Unbeknowst to the Plaintiffs, in November 2000 Mary executed a deed to the Premises in which she devised to herself a life estate, with a remainder interest to the Defendant. However, she reserved to herself during her lifetime the power to dispose of the property otherwise. The consideration underlying the conveyance was recited as “love and affection”.

As noted, Mary died in January 2004. In a number of conversations shortly thereafter, the Defendant offered to buy out the Plaintiffs’ interests in the Premises. Although the Defendant in his affidavit states that his offer to do so was to “settle their claims which I dispute”, his discussion in this respect with the Plaintiffs pre-dated the emergence of an issue between them that would have reasonably suggested a need or logic to “settle”. This was because the Plaintiffs at that point were unaware of the 2000 deed and the Defendant’s claim to an exclusive right to the Premises. At the Defendant’s deposition, the Defendant acknowledged that shortly after Mary died, he offered to pay the Plaintiffs “half of what the equity would have been left after all the bills [with regard to the Premises] had been paid.”

Again, while the Defendant denied that Mary ever told him of the Agreement before she died, at his deposition the Defendant acknowledged a conversation with Mary in which “[s]he simply said that there may be a problem with [the Plaintiffs] if the house were sold.”

When the Plaintiffs and the Defendant after Mary’s death could not agree on the fair market value of the Premises for purposes of splitting the equity 50-50 as described above, communications between them broke down. However, in July 2004 the Defendant informed the Plaintiffs of Mary’s conveyance of the conditional remainder interest to him in 2000 and that he had since transferred title to the Premises to himself and his co-defendant wife. The Defendant further informed them that he had taken out an $185,000 mortgage on the property. (At the time of Mary’s death, the outstanding mortgage was approximately $83,000.)

The Premises was appraised at the time of the mid-2004 refinancing as having a value of $260,000. At the time the Defendant offered to buy out the Plaintiffs’ 50% equity interest in the Premises, he had estimated to the Plaintiffs that the Premises was not worth more than $185,000.

The Defendant acknowledged that he was aware of the Agreement before the conveyance of his interest in the Premises to himself and his wife.

Based upon the appraisal at the time of the refinancing and the preexisting mortgage encumbrance, 50% of the net equity in the Premises, before the new mortgage was in place, was approximately $88,500.

Pressed at his deposition as to the basis of his position that the Agreement was not enforceable against him, the Defendant testified that it was because the Agreement had never been recorded (“[i]t wasn’t registered anywhere”) and because the Agreement was “just a piece of paper”).

Summary Judgment Standard

Judgment Standard

“[A] judge presented with a motion for summary judgment must consider ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ in determining whether summary judgment is appropriate. Mass.R.Civ.P. 56(c ), 365 Mass. 824 (1974). The burden on the moving party is to ‘show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Id.” Madsen v . Erwin, 395 Mass. 715, 719 (1985).

“If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a material fact in order to defeat the motion.” Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Conclusory statements or argumentative assertions by the opposing party, however, will not suffice. Key Capital Corp. v. M&S Liquidating Corp., 27 Mass. App. Ct. 721, 727-728, rev. denied, 406 Mass. 1101 (1989) (finding insufficient “bare assertions and conclusions regarding the [party’s] understandings, beliefs and assumptions”).

Application to the Facts

to the Facts

The Agreement was enforceable between John and Mary. Upon John’s death it became binding on Mary. I.e., Mary was not at liberty to alter the Agreement, and as an “heir” to Mary, the Defendant was bound by its terms, as well.

The Defendant was aware of the Agreement prior to Mary’s death. The admission in his deposition that Mary informed him that there would be a “problem” with the Plaintiffs if the Premises were to be transferred acknowledges in substance an interest of theirs in the Premises. Further, the Defendant’s admission that he offered to pay the Plaintiffs an amount that represented 50% of the net equity in the Premises reflects an understanding that the Plaintiffs had a right to one half of the Premises’ worth. The Defendant’s “bare assertions and conclusions” to the contrary, Key Capital Corp., supra at 728, given the totality of the factual record, do not create a material factual issue.

By analogy to “actual notice” in the context of deeds to unregistered land, “’[a]ctual notice’ can be satisfied by ‘[s]omething less than positive personal knowledge of the fact of the conveyance.’ Curtis v. Mundy, 3 Met. 405, 407 (1841). It does not require notice ‘by actual exhibition of the deed. Intelligible information of a fact, either verbally or in writing, and coming from a source which a party out to give heed to, is generally considered as notice of it.’ George v. Kent, 7 Allen 16, 18 (1863).” Emmons v. White, 58 Mass. App. Ct. 54,65 (2003). Here notice by these standards was satisfied.

Alternatively, the Court’s inherent power in equity to prevent and/or remedy a fraud requires judgment in favor of the Plaintiffs. In the light most favorable to the Defendant, the Defendant did not succeed to an interest in the Premises until Mary died (she reserved a life estate in the Premises and the discretion to change her mind with regard to its ultimate disposition). “Within days” of Mary’s death the Defendant acknowledged knowing of the Agreement and its terms. Once Raymond died, Mary had no legal authority during her lifetime to alter the terms of the Agreement. Mary’s attempt to do so was a breach of the Agreement and unlawfully denied the Plaintiffs their vested interest in the Agreement. It also operated as a fraud on the Plaintiffs.

The Defendant was not a bona fide purchaser for value; rather, as noted above, the consideration in the 2000 deed was merely “love and affection”. To permit the Defendant to succeed to 100% ownership of the Premises on these facts would countenance a fraud.

The Plaintiffs’ complaint, in addition to a prayer for relief in contract, prays that the Court declare a constructive trust. It is entirely appropriate that the Court do so on the present summary judgment record. “A constructive trust [is] a device employed in equity, in the absence of any intention of the parties to create a trust, in order to avoid the unjust enrichment of one party at the expense of the other where the legal title to the property was obtained by fraud or in violation of a fiduciary relation or arose where information confidentially given or acquired was used to the advantage of the recipient at the expense of the one who disclosed the information.” Barry v . Covich, 332 Mass. 338, 343 (1955). See also Meskill v. Meskill, 355 Mass. 148 (1969) and Restatement 2d: Trusts, §§ 44(1) and 411, comment o. Those circumstances are present here.

And, finally, the Defendant’s succession to an interest in the Premises to the exclusion of the Plaintiffs appears on the record before the Court to be void as a fraudulent conveyance. G.L. c. 109A, § 5.

Conclusion

For the reasons stated above, the Plaintiffs’ motion for summary judgment is ALLOWED.

ORDER

Judgment shall enter for the Plaintiffs. Defendant shall pay to the Plaintiffs one half the value of the Premises as of January 12, 2004, less the accrued amount owing on the mortgage note at the time, with statutory interest at 12% from that date forward.

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